Litigation can outlast a litigant. Order 5 Rules 10 to 12 and Rule 16 of the National Court Rules 1983 deal with what follows.
Rule 10(1) — the starting point
Where a party dies or becomes bankrupt but a cause of action in the proceedings survives the death or bankruptcy, the proceedings shall not abate by reason of the death or bankruptcy.
Which causes of action survive death
| Cause of action | Survives? |
|---|---|
| Contract — debt, breach | Yes — the estate sues or is sued |
| Property — recovery of land or goods | Yes |
| Negligence — personal injury | Generally yes, for the estate — subject to the Wrongs (Miscellaneous Provisions) Act |
| Dependency claim on a death | A separate claim under Part IV of that Act, brought for the dependants |
| Defamation | Generally not — personal to the deceased |
| Adultery or enticement | No — Adultery and Enticement Act 1988, personal in nature |
| Divorce | No — the marriage ends on death |
Where a person is killed by another’s wrong, two distinct claims may arise: the claim the deceased had, now vested in the estate; and the claim of the dependants under Part IV of the Wrongs (Miscellaneous Provisions) Act. They are pleaded differently and measured differently.
Where a settlement of such a claim involves a disabled person, Order 5 Rule 29(5) requires full particulars of the matters specified in section 32 of that Act to be filed and served.
Rules 10(2) and 11
(2) Where the interest or liability of a party passes by assignment, transmission, devolution or otherwise to another person, the Court may make orders for the addition, removal or rearrangement of parties and orders for the further conduct of the proceedings.
(3) The Court may act on application by a party, by the person to whom the interest or liability passes, or of its own motion.
Where a party is substituted for another, all things done in the proceedings before the order shall, unless the Court otherwise orders, have effect in relation to the new party as those things had effect in relation to the old.
So pleadings, discovery and interlocutory orders all stand. The estate steps into the shoes of the deceased and takes the case as it finds it.
One express exception: notice of intention to defend by the old party shall not dispense with notice of intention to defend by the new. The substituted defendant must file their own.
This is a real difference from addition under Rule 8, where sub-rule 11(3) fixes a fresh commencement date for the added party. Ask for substitution where that is what has happened.
Rule 12 — the deadline
Where (a) a party dies but a cause of action survives, and (b) an order under Rule 10 for the addition of a party in substitution for the deceased party is not made within three months after the death, the Court may, on application by a party or by a person to whom liability survives, order that unless, within a specified time after service of the order, a party is added in substitution for the deceased party, the proceedings be dismissed so far as concerns relief on the cause of action for or against the person to whom it survives.
(2) On making such an order, the Court shall give such directions as it thinks fit for service of the order on the persons (whether parties or not) interested in continuing the proceedings.
Three months passing does not end the case. What it does is unlock an application by the other side for an order in the nature of a conditional dismissal: substitute within the specified time, or the proceedings go.
Sub-rule (2) is the protection. Before the axe falls, the Court must direct service on everyone interested in continuing the proceedings, whether or not they are parties — so a beneficiary or executor gets notice and a chance to act.
Still, three months is short when a family is grieving and a grant of probate or letters of administration is being sought. Move early.
Rule 16 — where there is nobody to substitute
(1) Where it appears that a deceased person, or the estate of a deceased person, is interested in any matter in question and he has no personal representative, the Court may, on the application of any party —
(a) order that the proceedings continue in the absence of a person representing the estate; or
(b) with the consent of the person appointed, appoint a person to represent that estate for the purposes of the proceedings.
(2) The order, and any judgment subsequently made, shall bind the estate to the same extent as it would have been bound had a personal representative been a party.
(3) Before making an order, the Court may require notice to be given to such of the persons having an interest in the estate as it thinks fit.
Where nobody has taken out a grant of probate or letters of administration — and where the estate is small, nobody may — there is no personal representative to substitute. Rule 16 lets the Court either appoint someone for the purposes of the case, or press on without.
On applying for probate generally, see Order 19.
Practical steps
- Notify the Court and the other parties promptly. Do not take steps against a deceased party.
- Identify what survives. If nothing does, the proceeding should be discontinued rather than left on foot.
- Find or appoint the personal representative — or invoke Rule 16 if there is none.
- Move within three months under Rule 10(2) for an order substituting the representative, together with directions for the further conduct of the proceedings under Rule 11(1).
- Serve the order on the new party and on anyone interested in the estate.
Sources
- National Court Rules 1983 — O 5 rr 8–12, 16, 29; O 19
- Wrongs (Miscellaneous Provisions) Act (Chapter 297) — Pt IV, s 32
- Adultery and Enticement Act 1988
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.